SWAT team’s shooting of Marine causes outrage

Matt York | AP

Matt York | AP

A portrait of Marine Jose Guerena Ortiz is shown in the window of his home Tucson, Ariz., on June 9, 2011. Guerena was shot and killed on May 5, 2011 by the Pima County Sheriff's Department. The Sheriff's Department said its SWAT team was at the home because they suspected Guerena of being involved in a drug-trafficking organization that specialized in ripping off smugglers. The SWAT team fired 71 times, riddling Guerena 22 times, while his wife and child cowered in a closet.

William J. Moore | AP

William J. Moore | AP

Jose Guerena Ortiz (front row on left) is shown in this 2005 handout photo provided by fellow Marine William Moore while deployed at Camp Korean Village FOB with Marine Wing Support Squadron 371. Guerena was shot and killed at his house in Tucson, Ariz. May 5, 2011 by the Pima County Sheriff's Department.

An ordinary morning was unfolding in the middle-class Tucson neighborhood — until an armored vehicle pulled into the family’s driveway and men wearing heavy body armor and helmets climbed out, weapons ready.

They were a sheriff’s department SWAT team who had come to execute a search warrant. But Vanessa Guerena insisted she had no idea, when she heard a “boom” and saw a dark-suited man pass by a window, that it was police outside her home. She shook her husband awake and told him someone was firing a gun outside.

A U.S. Marine veteran of the Iraq war, he was only trying to defend his family, she said, when he grabbed his own gun — an AR-15 assault rifle.

What happened next was captured on video after a member of the SWAT team activated a helmet-mounted camera.

The officers — four of whom carried .40-caliber handguns while another had an AR-15 — moved to the door, briefly sounding a siren, then shouting “Police!” in English and Spanish. With a thrust of a battering ram, they broke the door open. Eight seconds passed before they opened fire into the house.

And 10 seconds later, Guerena lay dying in a hallway 20-feet from the front door. The SWAT team fired 71 rounds, riddling his body 22 times, while his wife and child cowered in a closet.

“Hurry up, he’s bleeding,” Vanessa Guerena pleaded with a 911 operator. “I don’t know why they shoot him. They open the door and shoot him. Please get me an ambulance.”

When she emerged from the home minutes later, officers hustled her to a police van, even as she cried that her husband was unresponsive and bleeding, and that her young son was still inside. She begged them to get Joel out of the house before he saw his father in a puddle of blood on the floor.

But soon afterward, the boy appeared in the front doorway in Spider-Man pajamas, crying.

The Pima County Sheriff’s Department said its SWAT team was at the home because Guerena was suspected of being involved in a drug-trafficking organization and that the shooting happened because he arrived at the door brandishing a gun. The county prosecutor’s office says the shooting was justified.

But six months after the May 5 police gunfire shattered a peaceful morning and a family’s life, investigators have made no arrests in the case that led to the raid. Outraged friends, co-workers and fellow Marines have called the shooting an injustice and demanded further investigation. A family lawyer has filed a multimillion-dollar lawsuit against the sheriff’s office. And amid the outcry in online forums and social media outlets, the sheriff’s 54-second video, which found its way to YouTube, has drawn more than 275,000 views.

The many questions swirling around the incident all boil down to one, repeated by Vanessa Guerena, as quoted in the 1,000-page police report on the case:

“Why, why, why was he killed?”

•••

Outside the family’s stucco home, a giant framed photo of Guerena in his Marine uniform sat placed in the front bay window, American flags waved in the yard and signs condemning his death were taped to the garage door.

The 27-year-old Guerena had completed two tours in Iraq, and a former superior there was among those who couldn’t make sense of his death.

Leo Verdugo said Guerena stood out among other Marines for his maturity and sense of responsibility. Verdugo, who retired as a master sergeant last year after 25 years in the Marines, placed Guerena in charge of an important helicopter refueling mission in the remote west desert of Iraq.

“He had a lot of integrity and he was a man of his word,” Verdugo said.

Verdugo, who also lives in Tucson, said Guerena came to him for advice in 2006 about whether to retire from the Marines and apply to the Border Patrol.

When Verdugo ran into Guerena and his wife at a Motor Vehicle Department office about a month before Guerena was killed, Verdugo said that Guerena told him that the Border Patrol had turned him down because of problems with his vision and that he had instead taken a mining job.

Those who worked with Guerena at ASARCO’S Mission Mine said the man they knew would never be a part of drug smuggling.

“I don’t care what the cops say. I don’t believe for one moment Jose was involved in anything illegal,” said Sharon Hargrave, a co-worker, adding through tears: “They were judge, jury and executioner, and there was no excuse.”

Guerena worked as a “helper” at two crushers in the mine, shoveling piles of rocks that fall from conveyor belts and wheel-barrowing heavy debris. “No one in their right mind” would choose this work, which paid about $41,000 a year, if they were bringing in drug smuggling money, Hargrave said.

“He was a hell of a worker,” she said. “He’s got good judgment and I could trust him.”

She said Guerena talked constantly about his wife and two sons, Joel and Jose Jr., 5, who’d gone to school the morning of the shooting. “I know he was definitely in love with his wife and in love with his kids,” she said.

Kevin Stephens, a chief steward at Mission mine and head of the miners’ union there, said bluntly: “Personally, I think he was murdered, and that is the feeling that is out here.”

But the sheriff’s office said just because Guerena was a Marine and worked at a mine doesn’t mean he couldn’t be involved in drug trafficking.

“We know from our experiences that good people turn their lives around and do bad things, and this guy was bad irrespective of his honorable discharge as a Marine,” said sheriff’s chief of investigations Rick Kastigar.

He said Guerena was suspected of involvement in a drug operation that specialized in ripping off other smugglers. One tip held that Guerena was “the muscle” of the organization, or in Kastigar’s words, “the individual that was directed to exact revenge.”

An affidavit supporting the search warrant that precipitated the raid describes the department’s suspicions about Guerena in a drug investigation that appeared more focused on his brother, and his brother’s father-in-law. Guerena’s brother does not have a listed number and other family members have ignored written requests from the AP for comment.

Sheriff’s Capt. Chris Nanos, who heads the criminal investigations division and oversaw the Guerena case, said that high-powered rifles and bulletproof vests that were found in Guerena’s home after the shooting back up investigators’ belief that Guerena was involved in drug trafficking. A shotgun found in the home was reported stolen in Tucson in 2008.

In the affidavit, sheriff’s Detective Alex Tisch laid out the case against Guerena’s family. It details two instances of drug seizures, one in April 2009 in which Jose Guerena was found in a home with other people who had just dropped off 1,000 pounds of marijuana at a separate residence, and another in October 2009 in which a man who had met with Guerena’s brother was found with drugs and weapons.

Neither Guerena nor his brother was charged.

The affidavit also cites two traffic stops of Jose Guerena.

The first was on Jan. 28, 2009, when an officer pulled Guerena and two other men over north of Tucson. The officer seized a gun from Guerena, a marijuana pipe from Guerena’s cousin and marijuana hidden in canisters of lemonade and hot cocoa that were under the feet of Guerena’s friend.

The officer arrested Guerena on charges of weapons misconduct, marijuana possession and possession of drug paraphernalia. But prosecutors filed no charges against him.

The other stop came Sept. 15, 2009, when the sheriff’s office pulled over a truck leaving the home of Guerena’s brother. Jose Guerena was in the passenger seat and another man was driving. Officers searched the truck and found commercial-sized rolls of plastic wrap that they say are commonly used to package marijuana. No arrests were made.

Tisch wrote in the affidavit that the past arrests of Guerena and members of his family, combined with observations during months of surveillance led detectives to believe that the family was operating a mid-level drug-trafficking organization in the Tucson area.

The investigation is ongoing, the sheriff’s office says.

•••

After the SWAT video circulated, people who didn’t know Guerena traveled from as far as California to march in protest of his shooting, and an Alaska woman began an online petition calling for a federal investigation of the SWAT team. Hundreds of people across the country have written on several Facebook pages dedicated to Guerena with messages that include, “He fought for our country, now we must fight for him.”

The Guereno family’s lawyer, Christopher Scileppi, filed a lawsuit on their behalf seeking damages from the sheriff’s office, the officers involved in the shooting and other officials. The lawsuit didn’t specify how much money the family was seeking, but a notice of claim filed Aug. 9 put the amount at $20 million.

“During this investigation, extremely little evidence, if any, was found to raise even a suspicion that Jose Guerena was involved in any possible drug trafficking ring,” the notice says.

Scileppi said the fact that Guerena had been fired at 71 times and hit 22 times was “grotesque,” and “almost a caricature of an overly excited group of poorly trained law enforcement agents.”

Kastigar sharply disputed that, calling the Pima County SWAT team one of the best of its kind in the nation. “We’re not a bunch of country bumpkins in southern Arizona with big bellies and cowboy hats,” he said.

The shooting was justified, he said, because Guerena pointed his AR-15 at the SWAT officers and said, “I’ve got something for you,” before they opened fire.

The five SWAT team members who shot Guerena believed that he had fired his weapon first, he said. Subsequent investigation revealed that the gun’s safety was on and hadn’t been fired. Ultimately, that is not an issue, Kastigar said.

“What reasonable person comes to the front door and points a rifle at people?” he said. “It takes several milliseconds to flip the switch from safety to fire and take out a couple of SWAT officers. I’m firmly of the opinion that he was attempting to shoot at us.”

The officers laid down “suppressive” fire because one had tripped and fallen and the others thought he’d been shot.

“You point a gun at police, you’re going to get shot,” Kastigar said.

The five officers who shot Guerena declined to speak to the AP through Mike Storie, a police union lawyer who represents them and defends their actions.

“Anytime that they are faced with a serious, imminent and deadly threat, they are entitled and justified to use deadly force,” he said. “And when Guerena came around the corner and lifted an AR-15 and pointed it at them, that provided the justification.”

An independent expert, Chuck Drago, a former longtime SWAT officer for Fort Lauderdale, Fla., police who now does consulting on use of force and other law enforcement issues, said that the shooting itself appeared justified.

“It’s a horrible, horrible tragedy, but if they walked in the door and somebody came at them with an assault rifle, that would be a justifiable response,” said Drago. “It doesn’t matter whether he’s innocent or not.”

But after examining elements of the search affidavit, Drago questioned whether the sheriff’s office truly had probable cause.

“When you back up and look at why they’re there in the first place and whether the search warrant was proper, my mind starts struggling,” Drago said. “There are a lot of things that don’t make a lot of sense.”